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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 15 (KLR)

Francis Mathina Kyule v Lavington Security Limited [2019] KEELRC 15 (KLR)

Employment and Labour Relations Court
19 December 2019
MOMAUREEN ONYANGO
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employer must prove an employee deserted their job — taking away uniforms without a hearing made this dismissal unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a guard on 5th February 2011 and deployed to the Nairobi Women's Hospital, Kitengela Branch, claimed his employment was unlawfully terminated in May 2014, seeking Kshs.595,800.00 comprising 12 months' compensation, service pay, overtime, three months' notice pay and unpaid April salary, plus interest and costs. The Respondent denied termination, asserting the Claimant absconded duty after his off days, that his phone was unreachable, and that he was neither denied a hearing nor entitled to the reliefs claimed. The court framed two issues: whether the employment was terminated and if so lawfully, and whether the Claimant was entitled to the reliefs. Relying on section 41(2) and section 45(2) of the Employment Act, and adopting the principle from Philomena Kiprotich Kirui vs. Lessos Veterinary Suppliers Limited that an employer alleging desertion must prove the employee had no intention of resuming work, the court found the Respondent had not rebutted the Claimant's testimony that he reported to work repeatedly and was told to await contact. RW1 could not produce records of the alleged absences or the numbers used to reach the Claimant. The court held the taking of his uniforms amounted to summary dismissal without a fair hearing, rendering the termination unfair. Service pay was refused as NSSF contributions were remitted. The April salary claim succeeded because the Respondent's payslip was for April 2013, not 2014. The court awarded 4 months' compensation, one month's notice pay, and Kshs.74,880.00 in overtime for 12 months, totalling Kshs.113,980.00, with costs to the Claimant and interest at court rates from the date of judgment. The claim thus succeeded only in part.

Key legal issues

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01

Whether the Claimant's employment was terminated and whether the termination was lawful

Holding

The Respondent failed to prove the Claimant absconded; taking away his uniforms amounted to summary dismissal without a fair hearing, rendering the termination unfair under sections 41(2) and 45(2) of the Employment Act.

Reasoning

The Respondent alleged the Claimant deserted duty, but RW1 could not recall the number used to contact him nor produce records showing the dates he was absent. The Respondent did not rebut the Claimant's testimony that he reported to work several times and was told to wait to be contacted. Retrieval of his uniforms evidenced summary dismissal without hearing, contrary to section 41(2), failing the section 45(2) test.

p. 3
02

Entitlement to the reliefs sought

Holding

The Claimant was awarded one month's pay in lieu of notice, 4 months' compensation for unfair termination and overtime for 12 months totalling Kshs.113,980.00; service pay was refused due to NSSF remittances; April salary was awarded as the Respondent's payslip was for April 2013, not 2014.

Reasoning

The Respondent failed to rebut the Claimant's assertion that termination occurred in May 2014 and its payslip was for April 2013, so the April salary claim succeeded. Compensation was limited to 4 months considering length of service and the Claimant's non-contribution. No contract supported 3 months' notice pay, so one month was awarded. Overtime was uncontroverted, and service pay was barred by NSSF remittances.

p. 3

Legal principles established

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  • An employer alleging desertion must prove the employee had no intention of resuming work
  • Summary dismissal without a fair hearing under section 41(2) of the Employment Act is unfair under section 45(2)

Court orders

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  1. 1.One month's pay in lieu of notice Kshs.7,820.00
  2. 2.4 months compensation Kshs.31,280.00
  3. 3.Overtime for 12 months Kshs.74,880.00
  4. 4.Total judgment of Kshs.113,980.00 against the Respondent
  5. 5.Costs of the suit awarded to the Claimant
  6. 6.Interest at court rates from the date of judgment until payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance cause; specific enabling provision not cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Mathina Kyule v Lavington Security Limited [2019] KEELRC 15 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/15/eng@2019-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.